Citation NR: 9730740
Decision Date: 09/08/97 Archive Date: 09/11/97
DOCKET NO. 95-16 008 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and son
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from September 1946 to April
1949. He died in 1976.
This appeal to the Board of Veterans’ Appeals (the Board) is
from rating action taken by the Department of Veterans
Affairs (VA) Regional Office (RO) in Manila.
The appellant and her son, and an interpreter, were present
at a personal hearing held before a Hearing Officer at the RO
in January 1994, a transcript of which is of record. [Tr.]
The appellant asked for and was scheduled for a subsequent
hearing in April 1997; she did not appear.
CONTENTIONS OF APPELLANT ON APPEAL
In substance, it is argued that the veteran developed
pulmonary tuberculosis (PTB) in or as a result of service,
that it was present and treated soon after service, and that
his death due to the disorder was thus due to disability of
service origin.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant’s claim for
entitlement to service connection for the cause of the
veteran’s death is not well grounded.
FINDING OF FACT
The claim for service connection for the cause of the
veteran’s death is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The appellant’s claim for entitlement to service connection
for the cause of the veteran’s death is not well grounded.
38 U.S.C.A. § 5107 (West 1991 & Supp. 1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service medical records are not available and there is no
indication that there are any other feasible avenues for
obtaining such records.
An official record of the veteran’s death showed that his
demise on July [redacted], 1976, was due to PTB.
Clinical records obtained from the private facility wherein
the veteran had been hospitalized in 1976 confirmed that he
had been diagnosed at that time as having far advanced PTB.
Affidavits were received from friends and family attesting to
the fact that the veteran had been ill with health problems
including pulmonary complaints from the time of service until
his death.
The appellant and her son similarly testified at the personal
hearing, stating that her husband had been treated by a
physician, now in his late 80’s, who diagnosed PTB. It was
indicted that further clinical records had not been found.
Statements were received in the 1990’s from a private
physician, Dr. Paulo Floresca, to the effect that he was no
longer in practice and records were no longer available, but
he recalled that he had attended the veteran since May 1,
1949, he had seen the veteran with complaints of cough, etc.,
for which he prescribed dietary supplements. In March 1951,
he recalled that he had again seen the veteran and after
taking a blood sample, it was tested and found to contain red
spots which he thought had been blood. He stated that the
veteran had been treated at a facility in Saipan in 1949 for
health problems, after having first experienced health
problems in 1948. In a subsequent statement, Dr. Floresca
indicated that he was now 89 years of age and no longer
practiced, but he recalled that he had treated the veteran,
and that the cause of his early death was PTB. There is no
indication that the physician had verified active PTB through
testing to include X-rays, etc.
An X-ray, dated in 1976, was introduced into evidence, and
reviewed by VA specialists in 1994. The X-ray report stated
that the film itself was badly damaged and degenerated.
There was evidence of extensive bilateral parenchymal disease
with homogenous consolidation of the upper lung fields.
Well grounded claim
In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States
Court of Veterans Appeals (Court) held that
A(n appellant) claiming entitlement to VA
benefits has the burden of submitting
evidence sufficient to justify a belief
by a fair and impartial individual that
the claim is well grounded. See 38
U.S.C.A. § 5107, and see Tirpak v.
Derwinski, 2 Vet. App. 609, 610-11
(l992).
If an appellant has not presented a well-grounded claim, then
the appeal must fail and there is no duty to assist him/her
further in the development of the claim. 38 U.S.C.A. §
5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992).
Case law provides that although a claim need not be
conclusive to be well-grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. See Dixon v. Derwinski, 3 Vet.App.
261, 262 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Where the issue is factual in
nature, e.g., whether an incident or injury occurred in
service, competent lay testimony, including a [n appellant’s]
testimony, may constitute sufficient evidence to establish a
well-grounded claim under [38 U.S.C.A. §] 5107(a). See
Cartright v. Derwinski, 2 Vet.App. 24 (1991).
However, where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is "plausible" or "possible" is
required. See Murphy, op. cit. at 81 (1990). A claimant
would not meet this burden imposed by section 5107(a) merely
by presenting lay testimony because lay persons are not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet.App. 492 (1992).
Consequently, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded under
section 5107(a).
If the claim is not well-grounded, the claimant cannot invoke
VA's duty to assist in the development of the claim. See 38
U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2
Vet.App. 141, 144 (1992).
It has also been determined that a well-grounded claim
requires three elements: (1) medical evidence of a current
disability; (2) lay or medical evidence of a disease or
injury in service; and (3) medical evidence of a link between
the current disability and the in-service injury or disease.
Caluza v. Brown, 7 Vet.App. 498 (1995).
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1997).
In general, service connection may be presumed in the case of
a veteran who served continuously for 90 days or more during
a period of war, if certain chronic disorders, i.e., PTB,
were present to a compensable degree within a given period of
time after separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.307,
3.309 (1996).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word “chronic”.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (1996).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1996).
Service connection may be granted for disability which is the
result of service-connected disease or injury. 38 C.F.R.
§ 3.310 (1996).
To establish service connection for the cause of the
veteran's death, the evidence must show that the disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related thereto. For a
service-connected disability to constitute a contributory
cause, it is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there
was a causal connection. 38 U.S.C.A. § 1310 (West 1991 &
Supp. 1997); 38 C.F.R. § 3.312 (1996).
Analysis
In this case, there is no evidence of a relevant disorder
during service, there is no credible evidence of a chronic
disorder of service origin after service and prior to 1976;
and there is no evidence of any disorder present prior to
death with a defined and supportable nexus between service
and any disability present at the time of the veteran’s death
in 1976.
The Board notes that despite the contention to the contrary,
the claimant has not submitted any competent medical evidence
to show that under any of the various laws and regulations
pertaining to cause of death claims, the veteran died of a
disability linked to his period of active service. The
competent medical evidence of record does not suggest that
the veteran died of a disability, including active PTB,
related to his period of active service.
The claimant may render her personal opinion; however, she is
not a medical expert, and as such is not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492
(1992). Consequently, the appellant’s lay assertions of
medical causation cannot constitute evidence to render a
claim well-grounded under 38 U.S.C.A. § 5107. Grottveit v.
Brown, 5 Vet.App. 91, 92 (1993).
Similarly, while the Board appreciates the information
provided by a private physician as to his recollection of
care of the veteran shortly after service, this, done from
memory some 4 decades later, is insufficient basis for a
grant of the requested benefits, and given the very best
scenario, does not reflect that PTB was diagnosed by approved
methods, etc. nor present to a compensable degree within the
presumptive period after service separation.
There is no indication that clinical records to support the
allegations are available in any context, nor anything to
collaterally reflect that the PTB was present to a
compensable degree in the several years after service
separation, or, that if present, the diagnosis was confirmed
by appropriate methods. The first clinical evidence of PTB
of record was dated in 1976, many years after separation from
service and shortly prior to the veteran’s death.
Accordingly, the appellant’s claim of entitlement to service
connection for the cause of the veteran’s death is not well
grounded, and her claim must be denied. The appellant has in
no way been prejudiced by this Board decision. See Bernard
v. Brown, 4 Vet.App. 384, 392-94 (1993).
In light of the implausibility of the appellant’s claim and
the failure to meet her initial burden in the adjudication
process, the Board concludes that she has not been prejudiced
by the decision to deny her appeal for service connection for
the cause of the veteran’s death.
During the pendency of the appeal, the appellant was informed
of the evidence necessary to complete her case. There does
not appear to be any outstanding feasibly available evidence
of which VA is on notice. See Epps v. Brown, 9 Vet.App. 341
(1996). In reaching this decision, the Board notes that the
Court has held that there was some duty to assist the
appellant in the completion of her application for benefits
under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1997),
depending on the particular facts found in each case.
Beausoleil v. Brown, 8 Vet.App. 459 (19965); Robinette v.
Brown, 8 Vet.App. 69 (1995). The fact and circumstances of
this case are such that no further action is warranted.
ORDER
The appellant not having submitted a well grounded claim for
entitlement to service connection for the cause of the
veteran’s death, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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